Swendrick v. Colvin
Filing
17
ORDER - Plaintiff's Statement of Errors is AFFIRMED and the Commissioner of Social Security's nondisability finding is REVERSED and REMANDED to the Commissioner and the ALJ under Sentence Four of § 405(g) for further proceedings consistent with the instructions in this Opinion and Order. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/15/2018. (daf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JASON LEE SWENDRICK,
Plaintiff,
Case No. 2:16-cv-1177
v.
Chief Magistrate Judge Elizabeth P. Deavers
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Jason Lee Swendrick, brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying his applications for disability insurance benefits. This matter is
before the Court for consideration of Plaintiff’s Statement of Errors (ECF No. 11), the
Commissioner’s Memorandum in Opposition (ECF No. 15), Plaintiff’s Reply (ECF No. 16), and
the administrative record (ECF No. 10). For the reasons that follow, Plaintiff’s Statement of
Errors is AFFIRMED, and the Commissioner’s decision is REVERSED and REMANDED to
the Commissioner and the ALJ under Sentence Four of § 405(g).
I. BACKGROUND
Plaintiff filed his application for benefits on April 22, 2013 with an alleged onset date of
March 1, 2009. (R. at 148-149, 217-223.) Plaintiff alleges disability from a brain tumor,
seizures, depression, and a hip condition. (R. at 135.) Plaintiff’s applications were denied
initially and upon reconsideration. (R. at 171-186.) Plaintiff sought a de novo hearing before an
administrative law judge. (R. at 187-188.)
Administrative Law Judge Edmund E. Giorgione (the “ALJ”) held a hearing on June 11,
2015, at which Plaintiff, represented by counsel, appeared and testified. (R. at 92-99.)
Vocational Expert W. Bruce Walsh, Ph.D. (the “VE”), also appeared and testified. (R. at 99102.) On September 24, 2015, the ALJ issued a decision finding that the Plaintiff was not
disabled within the meaning of the Social Security Act. (R. at 67-80.) On October 18, 2016, the
Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the
Commissioner’s final decision. (R. at 1-4.) Plaintiff then timely commenced the instant action.
(ECF No. 1.)
II. HEARING TESTIMONY
A. Plaintiff’s Testimony
At the administrative hearing, Plaintiff testified that he is thirty-four years old, divorced,
and lives with his mother in her trailer home. (R. at 92.) Plaintiff also testified that he is a
veteran of the United States Army and derives some income from Veterans Administration
disability benefits. (R. at 93.) Plaintiff stated that he last worked five years before the hearing
but was let go because of his seizures. (Id.) Plaintiff also stated that he was fired from several
other jobs because of his seizure condition. (R. at 94.)
Plaintiff testified that he suffered a grand mal seizure in the month before the hearing.
(R. at 95, 97.) According to Plaintiff, the seizure occurred while he was at Walmart and he woke
up in the hospital with a broken tooth and an injured jaw. (R. at 97.) According to Plaintiff, he
suffered another seizure a couple of weeks prior to that. (R. at 95.) When asked how often he
has seizures, he replied that “[i]t happens more than not. I mean, it is—it happens often.” (Id.)
Plaintiff testified that his seizures last anywhere from a few seconds to minutes. (Id.)
2
Plaintiff testified that he cannot do some household chores and must live with his mother.
(R. at 95-96.) Plaintiff also testified that he is restricted from driving, does not drink or use
illegal drugs, and takes medications that make him drowsy and put him to sleep. (R. at 96.)
Plaintiff further testified that his mother has to remind him daily to take his medication, and that
the local sheriff has had to do welfare checks on him when he was not able to answer his
mother’s calls. (R. at 97.) Plaintiff stated that he suffers from mood swings and anger. (R. at
97-98.) Plaintiff also stated that he can only be with his children when his mother is there. (R. at
98.)
B. The VE’s Testimony
The VE testified at the administrative hearing that Plaintiff’s past jobs include unskilled
and semi-skilled construction worker. (R. at 100.) The ALJ proposed a hypothetical question
based on the ALJ’s eventual determination of Plaintiff’s residual functional capacity (“RFC”).
The VE testified that such a hypothetical person could not perform Plaintiff’s past relevant work,
but could perform other jobs that exist in the state and national economy, such as packager,
office clerk, and marker. (R. at 100-101.)
The ALJ then asked the VE to consider the hypothetical individual, “except due to
seizure disorder, this individual would not be able to consistently maintain an eight hour day or a
40 hour work week, because of time off task due to being unaware.” (R. at 101.) The VE
responded that the hypothetical person could not do any work. (R. at 102.)
3
III. MEDICAL RECORDS
A. Veterans Administration
In his Veterans Administration treatment notes, Dr. Mehr Siddiqui provided a history of
patient’s seizure disorder. While serving in the Army at Fort Hood, Texas, Plaintiff had a
headache that lasted for month in 2002. (R. at 534.) During that time, while he was on terminal
leave, he reported a generalized convulsion that lasted for ten minutes. (Id.) Plaintiff was
admitted to Riverside Hospital in Columbus, Ohio, where an MRI revealed a left temporoparietal
tumor. (Id.) A biopsy revealed that it was benign and no radiation or chemotherapy followed.
(R. at 534-535.) A 2009 MRI revealed encephalomalacia in the left temporoparietal lobe and
mid parietal region. (R. at 535.) An EEG was abnormal, “consistent with seizure activity.” (R.
at 533.)
On March 9, 2011, Dr. Siddiqui saw Plaintiff, who complained of “small seizures which
may last for 30 seconds.” (R. at 535.) The seizures consisted of “blanking out spells or staring
in space.” (Id.) At that time, Plaintiff was not experiencing grand mal seizures, although six
months prior Plaintiff did experience an increased number of seizures. (Id.) Plaintiff attributed
his increase in seizure activity to stress from his divorce. (Id.) Plaintiff described experiencing
one generalized seizure per month, usually convulsive and lasting up to one minute. (R. at 533.)
Upon examination, Plaintiff scored 30/30 on his mini mental examination. (R. at 535.)
Plaintiff returned on March 25, 2013 after suffering another seizure after not taking his
anti-seizure medication. (R. at 551.) Plaintiff reported being back on his meds at the time of his
visit. (R. at 551.)
4
B. Ohio State University Medical Center
On August 24, 2012, Plaintiff was admitted to the Ohio State University Medical Center
(“OSUMC”) after suffering a seizure. (R. at 302-303.) Plaintiff reported experience grand mal
and petit mal seizure once or twice per month. (R. at 302.) Plaintiff also reported consistently
taking all of his anti-seizure medication. (Id.) The treating physician told Plaintiff that, in order
to recover from the seizure, he needed a “supportive care environment from family and friends.”
(R. at 303.)
C. Grady Memorial Hospital
On March 16, 2013, Plaintiff was admitted to Grady Memorial Hospital after suffering a
seizure while preparing to pick up his children. (R. at 334.) Plaintiff’s father witnessed the
seizure and called 911. (Id.) Upon arrival at the hospital, Plaintiff stated that he still felt foggy
and that although he did not recall the seizure, he recalled what he was doing before it. (Id.)
Plaintiff was observed for ninety minutes before being released. (R. at 335.)
On April 22, 2015, Plaintiff returned after suffering a seizure lasting up to two minutes at
a restaurant with his mother. (R. 805.) During the seizure, Plaintiff struck his head on the table.
(Id.) Plaintiff had not suffered a seizure in the six prior months. (Id.) Plaintiff was postictal
upon arrival, but was alert and oriented during examination. (Id.)
D. Union County Memorial Hospital
On September 13, 2013, Plaintiff was admitted to Union County Memorial Hospital after
suffering a seizure at a friend’s house. (R. at 421.) According to the medics who responded,
Plaintiff was upright and walking around upon their arrival. (Id.) On his way home after being
discharged, Plaintiff suffered another seizure lasting approximately two minutes. (R. at 445.)
5
According to the hospital’s treatment notes, Plaintiff was “confused with aphasia” and
“combative with staff when getting him out of car.” (Id.) Plaintiff subsequently had a third
seizure with hypoxia while in the emergency department and “return[ed] to baseline 30 minutes
after seizure.” (R. at 454.) Hospital staff administered a Keppra IV, after which Plaintiff’s
seizure activity ceased. (R. at 455.)
Plaintiff returned on December 27, 2013, after suffering another seizure lasting two
minutes with a ten to fifteen minute postictal state. (R. at 604.) He suffered his last previous
seizure approximately one month prior. (Id.)
On May 30, 2015, Plaintiff suffered a seizure outside Walmart and fell to the concrete,
hitting his face. (R. at 823.) Plaintiff reported that his seizures were better controlled since Dr.
Siddiqui adjusted his medication eighteen months prior. (R. at 824.)
E. Mount Carmel East
On November 26, 2013, Plaintiff was admitted following a seizure and transfer from the
Veterans Administration Hospital. (R. at 595.) According to hospital treatment notes,
“[Plaintiff] did have a post ictal episode and now is at his a slight mental status [sic].” (Id.)
Plaintiff reported that he suffers seizure episodes anywhere from once every several months to
every two weeks. (Id.)
F. State Agency Review
On November 30, 2013, non-treating state agency medical consultant Maureen
Gallagher, D.O., M.P.H., reviewed Plaintiff’s record for the state agency pursuant to his
application for benefits. Dr. Gallagher adopted the RFC from Plaintiff’s previous claim for
6
disability benefits dated November 19, 2011 and made no special findings with respect to
Plaintiff’s seizure disorder. (R. at 161-162.)
Upon reconsideration on November 30, 2013, non-treating state agency medical
consultant Dimitri Teague, M.D., also reviewed Plaintiff’s records. Dr. Teague confirmed Dr.
Gallagher’s findings and also adopted the previous RFC. (R. at 161-162.)
IV. ADULT FUNCTION REPORT
On June 4, 2013, Plaintiff completed an Adult Function Report for the Social Security
Administration. (R. at 244-251.) Plaintiff reported that he lives with his parents in their trailer.
(R. at 244.) Plaintiff also reported difficulty with his seizure disorder, memory, and following
instructions that limits his ability to work. Plaintiff further reported that he takes walks and takes
his children to the park. (R. at 245.) According to Plaintiff, he only has them every other
weekend and his mother takes care of them when he does. (Id.) Plaintiff stated that he has a
difficult time reading, cannot play sports, and is required to have another adult present when he
is with his children. (R. at 248.) Plaintiff reported that his girlfriend takes him to the park when
his children visit. (Id.) Plaintiff also reports that he visits his friends in the trailer park. (Id.)
Plaintiff stated that, because of his conditions, even though he feels sleepy, he cannot
sleep. (R. at 246.) Plaintiff indicated that he needs reminders to take care of his personal needs,
grooming, and to take his medicine. (R. at 246.) Plaintiff also indicated that he prepares his
meals on a weekly basis and that it takes him longer to do so since his condition began. (Id.)
Plaintiff further indicated that he does not do house or yard work because he is not allowed to
use tools as a result of his seizure disorder. (R. at 247.) Plaintiff stated that he is not allowed to
drive due to the frequency of his seizures. (Id.) Plaintiff also stated that he goes shopping with
7
his mother and that it takes up to ninety minutes to buy groceries with her help. (Id.) Plaintiff
further stated that he pays bills and has a savings account, but that his parents cancelled his
checking account. (Id.) According to Plaintiff he cannot pay attention long before drifting off
and losing focus. (R. at 249.) Plaintiff listed drowsiness, depression, and agitation as side
effects of three drugs that he takes and mood and depression as side effects of the fourth. (R. at
251.)
V. THE ADMINISTRATIVE DECISION
On September 24, 2015, the ALJ issued his decision. (R. at 67-80.) At step one of the
sequential evaluation process,1 the ALJ found that Plaintiff had not engaged in substantially
gainful activity since March 1, 2009, the amended alleged onset date, through December 31,
2014, the date last insured. (R. at 69.)
1
Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or equal
the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
5. Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
8
The ALJ found that Plaintiff had the severe impairments of seizure disorder, benign brain
tumor; avascular necrosis of the hip, bilaterally, and depressive disorder. (R. at 70.) The ALJ
further found that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. at 72.) At step four of the sequential evaluation process, the ALJ found that
Plaintiff had the following residual functional capacity (“RFC”):
After careful consideration of the entire record, [the ALJ] find[s] that, through the
date last insured, the [Plaintiff] has the residual functional capacity to lift/carry
and push/pull 20 pounds occasionally and 10 pounds frequently; occasionally
stoop, crouch, kneel, crawl, and climb ramps/stairs; never climb
ladders/ropes/scaffolds; and never work at unprotected heights or around moving
machinery. Additionally, the claimant can understand, remember, and carry out
simple to moderately complex instructions, can sustain attention and
concentration for two hour segments over an eight hour workday, can respond
appropriately to supervisors and co-workers in a task oriented setting where
contact with others is casual and infrequent, able to adapt to simple changes and
avoid hazards in a setting without strict production demands.
(R. at 74-75.) In reaching this determination, the ALJ found that Plaintiff has mild restrictions in
activities of daily living. (R. at 73.) Summarizing the record, the ALJ stated as follows:
On June 4, 2013, the claimant stated that he took his children to the park, took
care of his two dogs, took care of his personal needs, sometimes prepared meals,
took walks, went shopping, took care of paying the bills, watched television,
listened to music, and visited with his girlfriend and other friends two to three
times per week. The claimant also ate out. And although his testimony is after
his date last insured, the claimant stated that he does some of the household
chores, such as cooking, laundry, and doing the dishes. Based on this evidence I
conclude that the claimant’s daily activities prior to his date last insured were only
mildly limited.
(Id.) The ALJ stated that, “[t]he amount of activities in which the claimant is able to engage is
not indicative of someone with debilitating symptoms.” (R. at 77.) The ALJ found that Plaintiff
is “able to function independently . . . with the exception of being unable to drive.” (R. at 74.)
9
In taking account of Plaintiff’s seizure disorder, the ALJ found that he cannot “work around
hazards, including ladders/ropes/scaffolds, moving machinery, or at unprotected heights.
VI. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the [Social Security Administration] fails to
follow its own regulations and where that error prejudices a claimant on the merits or deprives
10
the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of
Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
VII. ANALYSIS
In his statement of errors, Plaintiff contends that the ALJ erred by failing to find that he
does not have an impairment or combination of impairments that met or medically equaled one
of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically,
Plaintiff states that he meets the criteria of Listing 11.05, benign brain tumor. (ECF No. 11 at 4.)
Plaintiff also argues that the ALJ erred in making his RFC determination. Specifically, Plaintiff
argues that the ALJ improperly discounted the limitations caused by Plaintiff’s seizure disorder.
(Id. at 10.)
The ALJ’s opinion accounts for Plaintiff’s seizure disorder by placing certain limitations
on possible work, mostly related to safety. Among the limitations are never climbing ladders,
ropes, or scaffolds; never working at unprotected heights or around moving machinery. (R. at
74-75.) In deciding not to include additional limitations, the ALJ stated that “[t]he amount of
activities in which the claimant is able to engage is not indicative of someone with debilitating
symptoms.” (R. at 77.) According to the ALJ, these activities include taking his children to the
park, taking care of his two dogs, taking care of personal needs, sometimes preparing meals,
taking walks, going shopping, taking care of paying bills, watching television, listening to music,
eating at a restaurant, visiting with his girlfriend and other friends, and doing household chores,
such as cooking, laundry, and doing the dishes. (R. at 73.) The ALJ concluded that Plaintiff has
only a mild restriction in his activities of daily living. (Id.)
11
The ALJ’s conclusion in this regard is not supported by substantial evidence. In his adult
function report, Plaintiff stated that he does take walks and takes his children to the park. (R. at
245.) Immediately following these comments, however, Plaintiff notes that he only has his
children every other weekend and that his mother actually takes care of them when he does. (Id.)
He also stated that it is his girlfriend who actually takes all of them to the park and that he is
required to have another adult present when he is with his children. (R. at 245, 248.) In his
subsequent testimony in front of the ALJ, Plaintiff reiterated that he can only be with his children
when his mother is there, as well. (R. at 98.)
With respect to other activities of daily living mentioned by the ALJ, Plaintiff stated that
it takes him, with his mother’s help, ninety minutes to do basic grocery shopping. (R. at 247.)
He prepares his meals only on a weekly basis. (R. at 246.) Plaintiff needs extensive reminders
to perform basic daily needs, such as taking his medications. (R. at 97, 246.) In fact, Plaintiff
testified that local sheriff’s deputies have conducted welfare checks on him because he missed
his daily reminder phone call from his mother to take his medications. (R. at 97.) Plaintiff also
stated that he is unable to do housework or yardwork that involved tools. (R. at 247.) Plaintiff
further stated that his parents cancelled his checking account. (R. at 247.) Plaintiff also testified
that the medications required to control his seizures cause severe drowsiness, which itself may
significantly limit his activities of daily living.
The credibility of Plaintiff’s testimony is generally reserved for the ALJ. Sullenger v.
Comm’r of Soc. Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining to disturb the ALJ’s
credibility determination, stating that: “[w]e will not try the case anew, resolve conflicts in the
evidence, or decide questions of credibility” (citation omitted)). In the instant case, however, the
12
record evidence supports Plaintiff’s statements and credibility, and the ALJ has cited no evidence
contradicting any of these statements. A pro forma statement that “claimant’s statements . . . are
not entirely credible for the reasons explained in this decision” is not sufficient when the ALJ
then cites no cognizable reasons in his decision. (R. at 77.) When those reasons amount to a
grossly incomplete summary of the material facts, judicial skepticism is warranted.
In sum, a review of the factual record reveals that the ALJ’s analysis of the limiting
effects of Plaintiff’s seizure disorder is inadequate, bordering on misleading. The Court certainly
cannot agree that the record supports the ALJ’s conclusion that Plaintiff is “able to function
independently.” (R. at 74.) As a result, neither Plaintiff nor the Court can be confident that his
claims were given a full and fair hearing in the administrative process. The Court, therefore,
finds that substantial evidence does not support the ALJ’s RFC determination. Rogers, 486 F.3d
at 248–49 (holding that when an ALJ mischaracterized activities of daily living, his decision is
not “sufficiently specific to make clear to the individual and to any subsequent reviews the
weight the adjudicator gave to [Plaintiff’s] statements and the reasons for that weight.”); see
Sitsler v. Astrue, 410 F. App’x 112, 117–18 (10th Cir. 2011) (“[A]n ALJ cannot use
mischaracterizations of a claimant’s activities to discredit his claims of disabling limitations”);
see also Gardner v. Astrue, No. CIV.A. 2:09-00011, 2009 WL 2356551, at *5 (M.D. Tenn. July
7, 2009), report and recommendation adopted, No. 2:09-0011, 2009 WL 2341137 (M.D. Tenn.
July 29, 2009) (holding that mischaracterization of material facts calls into question ALJ’s ability
to clearly determine the effects of a claimant’s impairments). In so finding, the Court makes no
conclusions with respect to the actual limitations caused by Plaintiff’s seizure disorder. Such a
13
determination awaits a full and fair analysis, upon remand, of all the limitations caused by
Plaintiff’s seizure disorder and the side effects of the medications taken to control it.2
VIII. CONCLUSION
In sum, for the reasons stated above, the Court concludes that substantial evidence does
not support the ALJ’s decision denying benefits. Accordingly, Plaintiff’s Statement of Errors is
AFFIRMED and the Commissioner of Social Security’s nondisability finding is REVERSED
and REMANDED to the Commissioner and the ALJ under Sentence Four of § 405(g) for further
proceedings consistent with the instructions in this Opinion and Order. The Clerk is
DIRECTED to enter judgment in favor of Plaintiff.
IT IS SO ORDERED.
Date: March 15, 2018
/s/ Elizabeth A. Preston Deavers____
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE
2
This finding above obviates the need for in-depth analysis of Plaintiff’s first and second
assignments of error. Thus, the Court need not, and does not, resolve the alternative basis
Plaintiff asserts supports reversal and remand.
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?